The Department of State has just issued the May 2017 Visa Bulletin. This is the eight Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.

May 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ-
ment
based

All Charge-
ability
Areas Except
Those Listed

CHINA-
mainland
born

INDIA

MEXICO

PHILIPPINES

1st

C

C

C

C

C

2nd

C

08FEB13

22JUN08

C

C

3rd

15MAR17

01OCT14

25MAR05

15MAR17

01JAN13

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues, moving an additional one month. Consular processed EB-3 are effectively current.

China: The China EB-2 date again moved up, but only a few weeks. The China EB-3 again date progressed about six weeks. This was a smaller progression than the last few Visa Bulletins. The China EB-3 continues to have a more favorable date than EB-2, as a result of many historical Chinese EB-3 workers "upgrading" their applications to EB-2.

India: EB-2 India moved up about one day, which is the first one day progression that I can recall. EB-3 India stayed the same, unfortunately. Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly four more months. The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, and 2012 EB-3 visas in about 6 months. This is even more positive than we expected. (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017."). Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.

The USCIS has issued a Policy Memorandum that will likely lead to denial of Computer-related positions where the employer uses a Level 1 OES wage. Accordingly, MU Law recommends that all clients use at least Level Two OES wages, or use alternative wage surveys. The new Policy Memorandum takes immediate effect and will be used for all H-1B petitions: H-1B cap, H-1B extensions, H-1B transfers, and H-1B amendments.

The March 31, 2017 Policy Memorandum rescinds a seventeen-year-old December 22, 2000 Policy Memorandum, issued by Nebraska Service Center then-Director Terry Way. There is little doubt that the new Policy Memorandum is a direct result of immigration restrictionists in the USCIS who feel emboldened by the new Trump presidency. It remains to be seen how restrictive USCIS officers will be as they interpret forthcoming computer H-1B petitions.

At virtually the same time, USCIS also has issued additional measures aimed at perceived abuses in the H-1B program. The April 3, 2017 press release says that these site visits will focus on:

Cases where USCIS cannot validate the employer’s basic business information through commercially available data;

H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and

Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

-The USCIS makes no accommodation for delays caused by couriers. Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 3, which is the first day that H-1B petitions are accepted.

-Premium Processing Service (PPS) has been suspended, starting April 3, 2017. The suspension may last for six months. The suspension includes all H-1B petition filings, such as H-1B cap cases, H-1B amendments, H-1B transfers, and H-1B extensions.

-In 2016, H-1B lottery results were not finalized until June. It may even take the USCIS longer than in past years to notify all H-1B cap winners and losers. Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.

In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing. It would be 264 days before the H-1B cap was reached. In 2010, it took 300 days until the H-1B cap was reached. In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached. Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, each year since 2013, mirroring the low unemployment rate.

The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.

Why? Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates. If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.